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Employer can't Insist any Experience for Promotion after Eligibility & Suitability was Found [Case Law]

Service Law - Rules in force as on the date of occurrence of vacancies should govern the appointments.
Service Law - In the absence of conscious decision not to fill up any vacancy pending amendmentthe denial of promotions to petitioners, based on the recommendations of the DPC, is illegal.
Major Port Trusts Act, 1963 - S. 28 - Cochin Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 1964 - Promotion - Departmental Promotion Committees (DPC) -  the respondents cannot insist any experience for promoting the petitioners after their eligibility and suitability was found by the DPC.
Regulation 16 of the 1964 Regulations specifically provides that DPC shall meet twice or at least once a year for preparing select lists for promotion. When a sanctioned post is remaining vacant and the Regulations provide for filling up of vacancies from the select list prepared based on recommendation of DPC to each of the grades, and DPC had met in this case in July 2015 and prepared select lists recommending promotion of petitioners from 15.07.2015 onwards, there was no justification in delaying the promotion of petitioners. Therefore the respondents cannot insist any experience for promoting the petitioners after their eligibility and suitability was found by the DPC, relying on Ext.R1(c) recruitment rules issued in 2016. Moreover, no material is produced to show that, in the present case, there was any decision at all taken by the respondents not to make any promotion or not to fill up any vacancy pending amendment of the rules. Nothing is stated in the counter affidavit regarding such a decision.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. ASHA, J.
W.P.(C) No.9420 of 2016-B
Dated this the 8th day of May, 2018
PETITIONER(S) 
O.G. VENU AND ANOTHER
BY ADVS.SRI.RAJESH NAIR SRI.BIJOY CHANDRAN 
RESPONDENT(S): 
1. COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI, REPRESENTED BY ITS CHAIRMAN, PIN: 682 009.
2. THE CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, COCHIN -682 009.
3. DEPARTMENTAL PROMOTION COMMITTEE, COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAN, CHIEF MECHANICAL ENGINEER, COCHIN, PIN: 682 009 
BY SRI.K.ANAND,SENIOR ADVOCATE SMT.LATHA ANAND, SC
J U D G M E N T 
The petitioners are aggrieved by the denial of promotion to the post of Assistant Foreman (PH) and Highly Skilled I (PH) respectively with effect from the date of occurrence of vacancies/the date from which their promotions were recommended by the departmental promotion committee.
2. Petitioners had been working as Highly Skilled I (HSK-I) and Driver (PH) respectively in the Cochin Port Trust. One post of Assistant Foreman had been lying vacant in the Port Trust from 01.04.2015 onwards consequent to the retirement of Sri.H.Synudeen. Sri.Synudeen was promoted as Assistant Foreman, as per Ext.P5 order dated 16.05.2014. By the very same order, one Sri.A.G.Joy was promoted as HSK-I from 16.05.2014 against the consequential vacancy, which arose on promotion of Sri.Synudeen. Sri.A.G.Joy was thereafter promoted as Asst.Foreman as per Ext.P6 order, from 24.02.2015 onwards. The 1st petitioner was the HSK I who was eligible for promotion as Assistant Foreman, against the vacancy, which arose on retirement of Sri.Synudeen, on 01.05.2015. Out of three sanctioned posts of Asst.Foreman (PH) in the Port Trust, one post had been remaining vacant since 01.05.2015.
3. As per Ext.P1 Recruitment Rules, the method of appointment to the post of Asst.Foreman (PH), Electrical Division is by promotion from the post of HSK I (PH), failing which from HSK (PH) and in the absence of qualified hands for promotion, by direct recruitment. Promotion to the post of HSK-I (PH) is by promotion from the post of Driver (PH) HSK failing which from among Driver (PH) as per Ext.P2 rules. The Departmental Promotion Committee for promotion as Assistant Foreman met on 16.7.2015 and as per Ext.P3 minutes, recommended the 1st petitioner for promotion as Assistant Foreman (PH) with effect from the date of the meeting of the DPC. In the event of the promotion of the 1st petitioner on the basis of the recommendation of the DPC in Ext.P3, the 2nd petitioner who is the senior most Driver (PH) is eligible for promotion as HSK -I (PH). As per Ext.P4 minutes, the DPC recommended the 2nd petitioner for promotion as HSK-I with effect from 16.07.2015, the date on which the DPC met.
4. However petitioners were not promoted on the basis of Exts.P3 and P4 recommendations of the DPC. These writ petitions were filed at that stage seeking directions to promote the petitioners to the respective posts in tune with the recommendations/the date on which the vacancies arose. During the pendency of the writ petition, the 1st petitioner was promoted as Asst.Foreman but with prospective effect, as per Ext.P15 order dated 08.01.2018 produced along with I.A.No. 2704 of 2018.
5. The respondents filed a counter affidavit stating that the recruitment rules which prevailed at the time when the DPC met were reviewed and revised rules were issued as per Ext.R1(c) gazette notification dated 22.03.2016. As per the newly modified recruitment rules promotion to the post of Assistant Foreman is to be made from the post of HSK-I (PH) with two years regular service in that grade. The method of recruitment is by promotion failing which by direct recruitment. It is stated that as per the pre-revised recruitment rules the method of appointment was by promotion from the post of HSK-I (PH) failing which from HSK (PH) and failing which by direct recruitment. As per letter dated 25.5.2013 the Ministry of Shipping had directed that recruitment rules in respect of Class II, III, and IV posts are to be prescribed by the Port Trust Board and were to be notified in State Government Gazette. Accordingly recruitment rules for those posts were duly approved by the Board of Trustees of Cochin Port as per resolution no.26 dated 29.5.2013 and resolution no.66 dated 14.8.2014 and sent to Ministry for approval as per section 124 of the Major Port Trusts Act, 1963. The Ministry thereupon as per its letter dated 02.06.2015 advised the Cochin Port Trust to frame the recruitment rules for these posts and to notify the same in the State Government Gazette. Thereupon the Board took steps to notify the recruitment rules which were already approved by the Board. However certain modifications were found necessary and after reviewing the same it was found necessary to have modified recruitment rules in all departments. Thereupon a comprehensive review of the recruitment rules in all departments was carried out and draft recruitment rules were circulated on 12.8.2015 with notice to all recognised unions. Thereafter meetings were held in September 2015 to finalise the recruitment rules. After discussions with the trade unions the revised recruitment rules were notified on 22.3.2016. As per the new recruitment rules HSK-I is appointed by promotion from the post of Driver (PH) HSK/Technician HSK with two years regular service in the cadre. Similarly promotion as Asst. Foreman is made from HSK-I (PH) with two years regular service in that grade. It is stated that the DPC met on 16.07.2015 when recommendation was made to promote the 1st petitioner to the post of Asst. Foreman (PH). However he had not gained reasonable experience in the feeder category as his promotion as HSK-I was only in the month of March 2015. It was found that in the event of his promotion as Asst. Foreman he would have availed two promotions within a span of four months. It is stated that the matter was therefore referred to the Chairman of the 1st respondent who sought clarification from the Ministry. As per the new recruitment rules the 1st petitioner would be eligible for promotion as Assistant Foreman only on completion of two years experience in the feeder category. It is stated that the recommendation of the DPC to promote the 2nd petitioner was in anticipation of the vacancy that would have arisen on promotion of 1st petitioner. It is stated that the General Administration Department had as per Ext.R1(d) letter dated 04.09.2015 requested the Ministry of shipping to clarify whether minimum no. of years of service has to be prescribed in each post in order to ensure that there is no premature promotion, pointing out that there is no minimum service requirement for promotion as per the rules then existed. It is therefore stated that petitioners do not have any right to get promotion with effect from the date of recommendation by the DPC.
6. The petitioners have filed a reply affidavit stating that the Cochin Port Trust Employees (Recruitment, Seniority and Promotion) Regulations framed by Central Government under sec.126 read with sec.28 of the Major Port Trust Act, 1963 which prevailed at the time when the DPC met and considered the cases of the petitioners did not prescribe any experience for promotion as Asst. Foreman from the post of HSK-I. It is also pointed out that the earlier incumbents of the post got promotion in accordance with the rules which existed then without insisting any experience in the feeder category. As on the date on which the vacancies arose or on the date on which the DPC had recommended the promotion of the petitioners the rules in force did not insist any experience in the feeder category; the amendment was effected only with effect from 22.03.2016. It is also their contention that the amended regulation would have effect only from the date on which the regulations are approved by the Central Government as provided under sec.124 of the Major Port Trust Act. Therefore publication of the amended regulation as per Ext.R1(c) would not have any effect in the absence of approval of Central Government mandated by sec.124(4) of the Act. It is the case of the petitioners that they are having more than 30 years of service in the concerned field under the 1st respondent. They are sufficiently experienced in the respective field and therefore they are entitled to be promoted on the basis of the recommendation made by the DPC. During the pendency of the writ petition the 1st petitioner was promoted as per Ext.P15 order dated 08.01.2018 with effect from 08.01.2017.
7. The learned counsel for the petitioners relied on the judgments of this court and apex court in Bharat Sanchar Nigam Ltd. vs. Union of India : 2011 (4) KLT 804, B.L.Gupta and another vs. M.C.D : (1998) 9 SCC 223, and Stalin v. State of Kerala : 2006 (1) KLT 493 and argued that the petitioners were entitled to be considered and promoted in accordance with rules which existed as on the date of occurrence of vacancies.
8. At the same time the learned Standing Counsel argued that there is no mandate either to make promotion to the post of Asst. Foreman or HSK-I or to fill up the vacancies within any fixed time. Relying on the judgment in Deepak Agarwal and another vs. State of Uttar Pradesh and others: (2011) 6 SCC 725, the learned Standing Counsel argued that promotion is to be made in accordance with the rules prevailing at the time of promotion and not from the date of occurrence of vacancies. It was argued that mere recommendation by the DPC will not confer any right on the petitioners for promotion and it is upto the respondents to accept or reject the recommendations or to take a decision on the promotion of petitioners.
9. Having considered the rival contentions, it is necessary to examine the regulations which prescribe the method of appointment to the posts of Assistant Foreman. It is also necessary to examine whether the respondents had taken any conscious decision not to make any promotion on account of the pendency of the proceedings for amendment. Though the counter affidavit of the respondents explain the steps taken for amendment of recruitment rules, as evident from Ext.R1(b) minutes, there is no averment to the effect that a decision which is conscious or even otherwise was taken by the respondents not to make any promotion or not to fill up the vacancies pending amendment. It is seen that the proceedings for amendment of recruitment rules for class II, III and IV posts had been going on and draft recruitment rules approved by the Board had been forwarded to the Ministry in August 2013 and March 2015 for their approval and in June 2015 the Port Trust was informed by the Central Government that approval is not necessary from the Ministry. Para. 85 of Ext.R1(b) would show that discussions were going on regarding the insistence of requisite number of regular service as eligibility criteria for promotion. However Ext.R1(b) does not show that pending amendment the existing rules shall not be given effect to. Ext.R1(c) regulations came into force only on 22.03.2016. It is pertinent to note that Ext.P6 order granting promotion to Sri.A.G. John was issued only on 24.02.2015, just five months before the DPC met and recommended the petitioners for promotion. The proceedings for amendment were going on at that time also. No particular decision is seen taken between 24.02.2015 and 15.07.2015 or till 22.03.2016, so as to keep in abeyance the promotions.
10. The Departmental Promotion Committee had met in July 2015 when all these proceedings for amendment were going on. It is clear that the DPC which was constituted by officers of the respondents themselves had considered the question of promotion against the vacancies which arose at the relevant time. Therefore there was no reason for not invoking the then existed rules and in granting promotion to the petitioners in accordance with Exts.P1 and P2 rules on the basis of Exts.P3 and P4 recommendations.
11. Section 28 of the Major Port Trusts Act, 1963 empowers the Board of Trustees of a Port Trust to make regulations relating to appointment, promotion, conditions of service, etc of its employees. Section 126 provides that the first Regulations under the Act shall be made by the Central Government. Under Section 124, the Regulations made by the Board shall have effect only after it is approved by the Central Government. Subsection 4 of Section 124 provides that every regulation made under the Act shall be laid before each House of Parliament. Section 125 empowers the Central Government to direct any Board to make, amend or modify regulations relating to matters specified under Section 28 of the Act. The Cochin Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 1964, are the first regulations framed by the Central Government in exercise of powers conferred under Section 126 read with Section 28 of the Act and those regulations came into force from 29.02.1964. Under Clause 3(h) of the Regulations, 1964 'grade' means any of the grades specified in schedule of post prepared and sanctioned by the Board under Section 23 of the Act. Clause 5 of the Regulations provide that the authorised, permanent and temporary strength of the various grades shall be as in the schedule of staff prepared and sanctioned by the Board from time to time. As per clause 6, all substantive appointments in various grades of posts shall be subject to recommendations of the respective departmental promotion committees. Clause 7 of the Regulations provides that the manner of filling up of vacancies, age limit, educational qualification, experience and other particulars, for recruitment and promotions to various grades or posts shall be as in the schedule annexed to the regulations. Under Clause 3(k), select list in relation to any grade means the select list prepared in accordance with Regulation 16. Exts.P1 and P2 were the recruitment rules in force to the post of Assistant Foreman and HSK-I in Power House (PH) till Ext.R1(c) rules were issued on 22.03.2016 with prospective effect. Ext.P1 rules show that the sanctioned strength of Assistant Foreman under the respondents is 3; it is a non-selection post included in Class III. Method of appointment to the post is by promotion failing which by direct recruitment. Promotion is to be made from HSK-I (PH) failing which from HSK(PH). Regarding the existence of DPC and its composition, it is provided: “as per Reg:16 of the CPE(RS&P) Reg:1964(Class III DPC)”. As per Ext.P2 rules, promotion to the category of HSK-I (PH) which is also a post in Class III, is to be made from Driver (PH) HSK failing which Driver (PH) Skilled with 5 years service in the cadre. Requirement and constitution of DPC are the same as in the case of Assistant Foreman.
12. Clause 16 of Regulations, provides for the constitution of DPC for each grade of employees under the Board. For Class III posts the DPC shall be constituted with the Chairman : Head of the Department nominated by the Chairman/Deputy Chairman of the Board and Members : Two officers nominated by the Chairman/the Deputy Chairman of the Board. It further provides that the DPC shall meet once or twice a year as may be necessary and prepare a select list of employees fit for appointment against the promotion quota of vacancies in various grades or posts. It further provides for the number of employees to be included in the zone of consideration in cases where promotion is to be made on the basis of merit. It provides that the employees shall be arranged in the order of merit adjudged by the committee and select list so prepared shall be utilised for filling up vacancies likely to arise during the course of the year. It further provides that seniority shall also be considered while adjudging the merit of an employee. Thus clause 16 read with clause 6 of the regulations mandates that DPC has to meet once or twice a year for preparation of select list for each of the grades whether it is a selection post or a non-selection post and any substantive appointment to a post under the Board shall be made from the select list thus prepared by the DPC. Exts.P3 and P4 are the recommendations made by the DPC as prescribed in Clause 16, in accordance with Exts.P1 and P2 recruitment rules. When the DPC had already recommended promotion of petitioners and promotions were made even in February 2015 in accordance with those recruitment rules there is no reason to deny promotion to the petitioners in accordance with those rules, in tune with the recommendation to promote them from 16.07.2015.
13. The respondents have stated that they had as per Ext.R1(d) letter dated 04.09.2015, sought clarification from Central Government as to the requirement of experience for promotion to these posts. A perusal of the letter would show that the Secretary of the 1st respondent sought for clarification as to whether a minimum number of years of service has to be prescribed in each posts for promotion, saying that it was noticed that an employee was getting two promotions within four months. But Exts.P3 or P4 minutes of the DPC do not reflect any such matters being considered while recommending the petitioners for promotion. At any rate the respondents have not produced the response if any received from the Central Government. Ext.R1(a) agenda items fixed on 15.10.2015, for the meeting of the Board of Trustees of the Cochin Port Trust for 2015-16 would show that the Ministry had, as per its letter dated 25.05.2013, directed the Board to prescribe the recruitment rules in respect of the posts in Class I to IV. Thereafter by letter dated 02.06.2015 the Ministry had directed the Board to frame the rules and get it notified in the gazette. From Ext.R1(a) agenda note and R1(d) letter, it would appear that the modifications insisting 3 years' experience in the feeder category for promotion was suggested only after Ext.R1(d) letter i.e after September 2015. But there is not even an averment that the respondents had taken a decision not to make any promotion or fill up any vacancy pending amendment. Ext.R1(a) would show that proceedings for amendment were going on from 2013 onwards. Ext.P6 order shows that promotions were made to these posts even in February 2015. Apart from seeking a clarification, there was no decision to keep in abeyance any promotions. By keeping in abeyance the promotions the Board has in effect kept in abeyance the operation of the provisions contained in regulation 16 of the first regulations, 1964, for which no authority is provided in the Regulations. In these circumstances I am of the considered view that the action of the respondents in denying promotions to petitioners in tune with the recommendations in Exts.P3 and P4, from 16.07.2015 is illegal.
14. In the judgment in Deepak Agarwal V State of U.P : (2011)6 SCC 725, relied on by the learned Standing Counsel for the respondents, the apex court was considering the claim for promotion in accordance with the rules which existed at the time when vacancies arose. The apex court found that there was no provision in the recruitment rules which insisted convening of DPC or preparation of select list, as was available in Y. V. Rangaiah V Sreenivasa Rao: AIR 1983 SC 803. On the other hand in the present case Regulation 16 is a provision available as in Rangaiah's case. In this case there is no conscious decision by the respondents not to make any promotion/not to fill up vacancies pending amendment of the rules, as available in Deepak Agarwal's case or in Ramulu's case, as evident from the following paragraphs of the judgment: 
“24. We are of the considered opinion that the judgment in Y.V. Rangaiah case would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a year wise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.
xxx 
28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in Dr. K. Ramulu9. In the aforesaid case, this Court considered all the judgments cited by the learned Senior Counsel for the appellant and held that Y.V. Rangaiah case would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place.” 
15. Therefore reliance on the aforesaid judgment, by the learned Standing Counsel is misplaced. Regulation 16 of the 1964 Regulations specifically provides that DPC shall meet twice or at least once a year for preparing select lists for promotion. When a sanctioned post is remaining vacant and the Regulations provide for filling up of vacancies from the select list prepared based on recommendation of DPC to each of the grades, and DPC had met in this case in July 2015 and prepared select lists recommending promotion of petitioners from 15.07.2015 onwards, there was no justification in delaying the promotion of petitioners. Therefore the respondents cannot insist any experience for promoting the petitioners after their eligibility and suitability was found by the DPC, relying on Ext.R1(c) recruitment rules issued in 2016.
16. Moreover, no material is produced to show that, in the present case, there was any decision at all taken by the respondents not to make any promotion or not to fill up any vacancy pending amendment of the rules. Nothing is stated in the counter affidavit regarding such a decision.
17. The circumstances under which the judgment in Deepak Agarwal's case was rendered are distinct and different than those in the present case. At the same time the Regulation 16 of the first regulations would show the applicability of the judgment in Y.V. Rangaiah V Sreenivasa Rao: (1983) 3 SCC 284, in which the apex court held that the rules in force as on the date of occurrence of vacancies should govern the appointments.
18. In the absence of conscious decision not to fill up any vacancy pending amendment, as available in Deepak Agarwal's case (supra) and in Dr.K.Ramulu and another vs. Dr.S.Surya Prakash Rao and others: (1997) 3 SCC 59, the denial of promotions to petitioners, based on the recommendations of the DPC, is illegal. The respondents have not denied the fact that the promotions were being made on the basis of pre-revised rules even in February 2015. Therefore in the light of the judgments of the apex court in Y.V. Rangiah's case supra, in N.T. Bevin Katti & others V Karnataka State Public Service Commission & others: (1990) 3 SCC 157, State of Rajastan V R.S.Dayal State of Bihar and others:(1997) 10 SCC 419, ' B.L.Gupta V MCD: (1998)9 SCC 223, the full bench judgment of this court in Mohanan V Director of Homoeopathy and others: 2006(3) KLT 641, Bharat Sanchar Nigam Ltd V Union of India:2011(4) KLT 804, petitioners were entitled to be promoted in accordance with Exts.P1 and P2 recruitment rules.
In the result, it is declared that petitioners are entitled to be promoted to the post of Asst. Foreman (PH) with effect from 16.7.2015 based on the recommendations in Exts.P3 and P4; they would be entitled to consequential fixation of pay from the respective dates. In case the 2nd petitioner is not promoted so far he shall be granted promotion against the vacancy which arose consequent to the promotion of the 1st petitioner as directed. He shall also be entitled to get his pay fixed with effect from the date of such promotion. The respondents shall issue orders granting promotion to the petitioners to the respective posts accordingly and their pay shall be fixed as directed within a period of three months from the date of receipt of a copy of the judgment.

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